RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 February 2005
      DOCKET NUMBER:  AR20040000338


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard, Jr.         |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Maribeth Love                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his DD Form 214 (Certificate of
Release or Discharge from Active Duty), with the separation date 31 January
1999, be corrected to show he retired in the rank of sergeant first
class/pay grade E-7.

2.  The applicant states, in effect, that an administrative error was made
on his DD Form 214 by incorrectly showing the rank of staff sergeant/pay
grade E-6 at the time of his retirement.

3.  The applicant states, in effect, that it would be in the interest of
justice to waive his failure to timely file because he discovered the
errors at the time of his separation and that the "clerks" did not want to
fix the errors on his DD Form 214.

4.  The applicant provides a copy of U.S. Total Army Personnel Command
Order Number 346-20, dated 12 December 1995, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 January 1999, the date of his retirement.  The
application submitted in this case is dated 13 April 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records show that the applicant enlisted in the Army on 23 October 1985
for a period of 3 years.  After completion of basic and advanced individual
training, he was awarded military occupational specialty 63T10 (Infantry
Fighting Vehicle System Mechanic).

4.  U.S. Total Army Personnel Command (PERSCOM) Order Number 346-20, dated
12 December 1995, shows that the applicant was promoted to the rank of
sergeant first class/pay grade E-7, effective 1 January 1996.  This order
states that staff sergeants promoted to sergeant first class who do not
have
Advanced Noncommissioned Officer Course (ANCOC) credit are promoted
conditionally.  This order further states that soldiers who receive a
conditional promotion will have their orders revoked and their names
removed from the centralized list if they fail to meet the ANCOC
requirement.

5.  The applicant's records contain an 8 July 1996 memorandum from the
Chief of the Noncommissioned Officers Education System (NCOES) at PERSCOM
to the Chief of Enlisted Promotions at PERSCOM.  This memorandum ordered
that the applicant's promotion to the rank of sergeant first class be
revoked and his name removed from the promotion standing list for failure
to achieve course standards due to Army Physical Fitness Test failure.

6.  The applicant's service personnel records do not contain any documents
which show the applicant's retirement process; however, the applicant's DD
Form 214 shows the narrative reason for separation from active duty was
"Voluntary Early Retirement."

7.  The applicant's DD Form 214 shows that he was separated on 31 January
1999 under the provisions of chapter 12 of Army Regulation 635-200 (Active
Duty Enlisted Administrative Separations), by reason of voluntary early
retirement.  Records also show that he was furnished an Honorable Discharge
Certificate and had completed a total of 16 years, 2 months and 17 days of
active duty.

8.  Item 18 (Remarks) of the applicant's DD Form 214 shows that the
applicant was retired in accordance with section 4403 of the Fiscal Year
1993 National Defense Authorization Act (Public Law 102-484).

9.  Army Regulation 635-5 (Separation Documents) establishes the
standardized policy for preparing and distributing the DD Form 214.  The
regulation in effect at the time directs, in pertinent part, that the
purpose of the separation document is to provide the individual with
documentary evidence of their military service.  It is important that
information entered on the form should be complete and accurate.

10.  Army Regulation 635-5 states, in pertinent part, that item 4a (Grade,
Rate or Rank) and 4b (Pay Grade) will be completed to show the active duty
grade or rank and pay grade at the time of separation/retirement.

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) governs
the enlisted promotions and reductions function of the military personnel
system. Paragraph 1-27 states, in pertinent part, that soldiers are
required to be graduates of ANCOC for promotion to sergeant first class.
Soldiers selected for promotion to staff sergeant, sergeant first class and
sergeant major, but have not met the NCOES requirements, will be promoted
conditionally.  Soldiers who fail to successfully complete, fail to remain
eligible to be scheduled for or attend, who are denied enrollment in, or
who do not attend their scheduled NCOES class (through fault of the
soldier) will be administratively reduced and/or removed from the promotion
list.  The effective date of administrative reduction is the date of the
action that caused the soldier to be ineligible to retain the promotion.
The date of rank will be the previous date of rank held at the reduced
grade.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 12 sets policies and procedures
for voluntary retirement of soldiers because of length of service.
Paragraph 12-3b states, in pertinent part, that retirement will be in the
regular or reserve grade the soldier holds on the date of retirement as
directed in 10 USC 3961.

13.  Section 4403 of the National Defense Authorization Act for Fiscal Year
1993 (Public Law 102-484), as amended, provided for a temporary early
retirement authority during the force reduction transition for enlisted
personnel on active duty.  The purpose of this legislation was to provide
the Secretary of Defense with an additional temporary force management tool
to effect the drawdown of forces.  The law amended Section 3914, Title 10,
United States Code to allow early retirement of an enlisted member with at
least 15 years but less than 20 years of service.  The active force
drawdown period is defined as beginning on 23 October 1992 and ending on
1 October 1999; however, Congress has enacted legislation which has
extended the period of the drawdown and the early retirement authority to 1
October 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that an administrative error was made on his DD
Form 214 and should be corrected to show that he retired in the rank of
sergeant first class/pay grade E-7 instead of staff sergeant/pay grade E-6.

2.  Department of the Army orders show that the applicant was conditionally
promoted to the rank of sergeant first class contingent upon completion of
ANCOC.  However, Department of the Army officials ordered revocation of
those orders when the applicant failed to successfully complete ANCOC.

3.  Evidence shows that the applicant was separated by reason of voluntary
early retirement and, in accordance with Army regulation, the applicant was
separated in the rank and pay grade he held at the time of his retirement.

4.  There is no evidence, and the applicant has not provided any evidence,
which shows that, through administrative error, his DD Form 214 was
incorrectly annotated to reflect his rank as staff sergeant, pay grade E-6,
at the time of his retirement.

5.  Based on the foregoing, the applicant's DD Form 214 is correct as
currently constituted.  Therefore, there is no basis to correct the rank
and pay grade on his DD Form 214.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 January 1999; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 January 2002.  However, the applicant did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_ML_____  _TDH____  __JI____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations
prescribed by law.  Therefore, there is insufficient basis to waive the
statute of limitations for timely filing or for correction of the records
of the individual concerned.




                                         Thomas D. Howard, Jr._
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040000338                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/17                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000/DD Form 214                    |
|2.  307                 |129.0500/pay grade                      |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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